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An open letter from Senator Jason Barickman on state ethics act

11/16/2017

I supported the passage of Senate Bill 402 which created new ethics standards for sexual harassment and House Bill 137 which removed the time limit to allow the Illinois Legislative Inspector General (LIG) to investigate complaints made over the last three years when the General Assembly was without an Inspector General. I believe this was an extremely necessary and long overdue step in improving ethics standards and enforcement, and I applaud the Governor for signing these into law. I am glad that the members of the General Assembly were able to work together in a bipartisan manner to address these issues.

I am concerned, however, that there are still many areas where our state ethics act falls woefully short and may, in fact, inhibit the ability of the Legislative Inspector General from being an effective investigator. The people of Illinois need to be able to have faith in their government and to be able to trust their elected officials. After reviewing the statute and the Legislative Ethics Commission (LEC) Rules, I have come up with a non-exclusive list of problems that should be considered by the General Assembly. I welcome your feedback on the issues I’ve outlined below, as well as any recommendations which you have for the Legislature to consider which will strengthen our ethical standards and practices.

1.I understand that at least 26 allegations have been submitted over the past three years and those allegations may have sat idle due to the lack of a Legislative Inspector General. Among other things, House Bill 137 permits the LIG to investigate those allegations which were submitted while the Office of the LIG was vacant, notwithstanding that the Act limits any initiation of an investigation “more than one year after the most recent act of the alleged violation…”. However, this solution to the statute of limitations issue is incomplete.

a.If the LIG concludes that reasonable cause exists that a violation has occurred with any of these 26 allegations, the Act limits the LIG to filing complaints “within 18 months after the most recent act of the alleged violation” (Section 25-50(c)). This additional statute of limitations issue was not addressed in House Bill 137.

2.The Operational Rules of the Legislative Ethics Commission, as amended and effective April 16, 2008 (the “Rules”) state that allegations shall not be investigated by the office of the LIG” without the advance approval of the Commission…” (Rule 17-25).

a.This prevents the Legislative Inspector General from independently pursuing a complaint.

b.If a conflict exists between Commission Member(s) and the subject of the investigation (i.e., demonstrated political support, business transactions, familial relationship, etc.) or a Commission member is the subject of the investigation, there should be a remedy to allow the LIG to proceed with investigating the allegation.

3.Following an investigation where the LIG determines that reasonable cause exists to believe that a violation has occurred, the State Officials and Employees Ethics Act (5 ILCS 403) (the “Act”) requires the LIG to issue a summary report of the investigation to the “appropriate ultimate jurisdictional authority”. Then, the appropriate ultimate jurisdictional authority has 20 days to respond to the summary report and include “a description of any corrective or disciplinary action to be imposed” (Sec. 25-50(a)).

a.There is apparently no remedy for cases when a conflict exists between the appropriate ultimate jurisdictional authority and the subject of the investigation or when the ultimate jurisdictional authority is the subject of the investigation.

b.There is also no remedy for a case in which the appropriate ultimate jurisdictional authority does not provide a response within twenty days. It is unclear whether the LIG may immediately proceed to file a complaint with the Commission under Section 25-50(c), or if such immediate action would be prohibited.

4.Following an investigation the LIG determines that a complaint should be filed with the Commission, the Act requires her or him to obtain the Attorney General’s determination “that reasonable cause exists to believe that a violation has occurred” (Sec. 25-50(c)).

a.However, no remedy exists when there is a conflict between the Attorney General and the subject of the allegation.

5.Former Legislative Inspector General Thomas J. Homer suggested multiple reforms in a letter to Members of the Illinois General Assembly, dated April 15, 2014 (link). Those reforms included (i) enacting patronage reform measures, (ii) reporting of ex parte communications, (iii) implementing uniform rules for casework modeled off the Congressional House Ethics Manual, (iv) establishing transparency in investigations conducted by the Legislative Inspector General, and (v) enacting conflict of interest prohibitions. Separately, former Inspector General Homer also urged the strengthening of the “Illinois Governmental Ethics Act”, which he rightfully suggested should not be confused with the “State Officials and Employees Act”, in a letter to Members of the Illinois General Assembly, dated August 10, 2011 (link). Here, former General Homer called for the legislative enactment of a Code of Conduct, penalties for violations, and enhanced levels of reporting on Statements of Economic Interests.

These are just the issues that I have identified so far. Therefore, I strongly believe that the current LIG and members of the General Assembly should begin a public dialogue on these matters as soon as possible. I welcome any and all feedback on the aforementioned issues as well as any other issues that you may identify. My hope is that we can continue to work together to establish the necessary standards that will ensure the integrity of the Illinois General Assembly and the actions taken by the body.